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Stephen Harper wants Supreme Court’s opinion on Senate reform

Prime Minister Stephen Harper is referring his dream of a term-limited and voter-approved — if not elected — Senate to the Supreme Court of Canada for a legal opinion.

Prime Minister Stephen Harper is referring his dream of a term-limited and voter-approved — if not elected — Senate to the Supreme Court of Canada for a legal opinion.
(CHRIS WATTIE / REUTERS file photo)

OTTAWA—Prime Minister Stephen Harper is referring his one-time dream of a term-limited and voter-approved — if not elected — Senate to the Supreme Court of Canada for a legal opinion.

Faced with loud provincial objections to his plan to change the Senate via a simple federal law without a constitutional change approved by the provinces — as well as the ire of some of his own appointed senators — Harper is throwing his contentious plan into the lap of the country’s top judges.

It’s a move long urged on his government by the Liberals and by the Canadian Bar Association. It comes on the heels of the Quebec government’s own reference to that province’s high court. And it pushes the whole question to near the end of Harper’s term in government, if not past the scheduled next election in 2015.

Harper, who was to meet with Premier Pauline Marois in Quebec Friday, left it to his minister responsible for democratic reform, Tim Uppal, to make the announcement.

The reference asks the court to rule on outright abolition, as well as specific questions about whether the federal government has the power to set a range of term limits for different senators, and whether the changes can be applied to those already appointed. It also asks if Ottawa can unilaterally repeal the current requirement that Senators must own property.

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It also asks if Ottawa can unilaterally repeal the current requirement that Senators must own property.

Uppal said the reference would be an “effective and efficient” way to move the government’s plans ahead and eventually pave the way for future reform. But he wouldn’t answer when asked if the government prefers outright abolition.

The Harper government said it would be up to Quebec to decide whether to discontinue its court reference, but it believes both could continue on parallel tracks. Uppal said the Harper government is seeking approval of its right to pursue a broader reform than is squarely before the Quebec appeal court with the Marois government’s questions.

Liberal MP Stéphane Dion said he welcomed the move of a reference, because he trusts the high court will reject the Conservative position.

On top of that, he said, it is “bad reform” to create an elected Senate with no constitutional mechanism to resolve disputes between two elected legislative bodies, and with no weighting for population. He said it is “a recipe for a constitutional crisis.”

The prime minister didn’t respond to a question about whether the court reference is a stall tactic, blaming the opposition for stalling and delaying “for six or seven years.”

He noted Quebec had already referred the legislation to its court. “That is the reality,” he said.

In August, Quebec asked for a ruling on whether the Conservative government’s Bill C-7, which would change a basic institution of Parliament without the support of the provinces, amounts to an attempt to amend the constitution. It seeks a judicial opinion whether such a change can only be done according to the constitutional amending rule that requires the consent of two-thirds of the provinces representing 50 per cent of the population.

“We’re just happy they finally took our advice,” said a statement from the office of Liberal leader Bob Rae. The NDP favours an abolished senate.

The Conservatives now hold a majority in the Senate, as well as the Commons, and Harper has made dozens of appointments, claiming they all agree to run for office once his plan for Senate reform is a reality.

But he has run into problems with senators who don’t want term-limit changes to be retroactive and apply to them.

The Supreme Court of Canada, when it set out principles in the Quebec secession reference, said Canada’s constitutional government is based on the idea that major changes that “alter the fundamental balances of political power (including the spheres of autonomy guaranteed by the principle of federalism), individual rights, and minority rights” can be amended only “through a process of negotiation which ensures that there is an opportunity for the constitutionally defined rights of all the parties to be respected and reconciled.”

“Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it. By requiring broad support in the form of an “enhanced majority” to achieve constitutional change, the Constitution ensures that minority interests must be addressed before proposed changes which would affect them may be enacted.”

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